In the matter of an application by Watson, David Irving for an inquiry into an election in the Victorian Branch of the Commonwealth Scientific and Industrial Research Organisation Technical Association

[1986] FCA 157

Re: IN THE MATTER of an Application by David Irving Watson for an inquiry into
an election in the Victorian Branch of the Commonwealth Scientific and
Industrial Research Organisation Technical Association.
No. V 18 of 1986
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION
Keely J.

CATCHWORDS

Indistrial Law - registered organization- inquiry into allehed election irregularities - whether time fixed for lodging nominations had expired - whether divisional representatives "duly elected" before returning officer's declaration of results of election - whether rules permitted committee members to cast a number of votes in an election by secret ballot - whether duty to conduct election before proposed committee meeting - discretion to refuse relief where new election imminent.

Conciliation and Arbitration Act ss.159, 165(1), 165(4), 168(2), 168(3).

HEARING

MELBOURNE

#DATE 30:4:1986

ORDER

The application for orders relating to the election of Branch Councillor on 27 June, 1985 be dismissed.

It be certified that the applicant acted reasonably in appplying for the inquiry.

NOTE: Settlement and entry of orders is dealt with

in Order 36 of the Federal Court Rules.

JUDGE1

David Irving Watson (the applicant) was at all material times a member of the Commonwealth Scientific and Industrial Research Organisation Technical Association (the Association), an organization of employees registered under the provisions of the Conciliation and Arbitration Act 1904 (the Act). On 25 September, 1985 the applicant lodged an application under s. 159 of the Act for an inquiry by the court into alleged irregularities in or in connexion with an election, held on 27 June 1985, for the office of Branch Councillor for the Victorian Branch of the Association, (the election).

1. On 20 December, 1985 the Industrial Registrar granted the application and referred the matter to the court for determination. On 6 January, 1986 a Judge of the court gave directions as to the persons to be notified of the time and place for conducting the inquiry. On 7 February 1986 Mr. Marshall appeared on behalf of the applicant and Mr. Macken appeared on behalf of the Association, the General Secretary (Ms. Carol Popham) and Mr. R. J. Campbell. Mr. Campbell was the Chairman of the Victorian Branch of the Association and was also the successful candidate in the election. Both Mr. Marshall and Mr. Macken obtained directions from the court designed to define the issues as far as possible. The application was heard on April 7, 8, 16 and 17. Although it is now ten months since the election, it will be apparent from the dates set out above that the applicant has not been responsible in any significant way for the time which has elapsed since the election. In the circumstances it is desirable that a decision be given without delay but it will not be necessary to refer in these reasons to every submission put to the court.

2. The particulars of the three alleged irregularities were as follows:-
   
   "1. Duly elected Divisional Representatives were
   

refused, or alternatively not given, a vote in the said election.

2. The said election was not conducted in

accordance with the Rules of the Association in that Divisional Representatives who did vote were only given one vote and were not given the correct number of votes reflecting the voting strength of each Divisional Representative as provided for in the said Rules.

3. The Branch Committee had failed to provide for

the conduct of an election for Divisional Representatives from the Textile Industry Division and the Textile Industry Division members did not have any Representative or Representatives who could participate in the said election for Branch Councillor."

1. As to the first alleged irregularity I agree with the submissions of Mr. Macken that, on the material before the court, the Divisional Representatives had not been "duly elected" at the time of the collegiate election held at the meeting of the Branch Committee on 27 June, 1985. In my opinion, on the material in this inquiry, there are two reasons why they had not been "duly elected":
   
   (1) at the time of the election on 27 June 1985, it
   

was still possible for other persons to be nominated for election as Divisional Representatives. This was so because of the terms of the Returning Officer's notice, dated 8 June 1985, calling for nominations,

(2) at that time the Returning Officer had not

performed her duty under Rule 26(a) to "declare" the results of the elections to the Branch Committee. I accept Mr. Macken's submission that, having regard to the terms of Rule 26(a), read in the context of other rules of the Association and in the light of s. 133(1)(d)(vi) of the Act, the requirement that the Returning Officer "declare the results of elections" is not a mere formality. No such declaration had been made at the time of the election. In my opinion the Returning Officer's letter to the three candidates for election as Divisional Representative was not, as a matter of law, a declaration of the results of the election to the Branch Committee within the meaning of Rule 26(a). In addition, at the time of delivery of the letters, the Returning Officer could not "declare" the results; those results were not known because the time for nominations had not closed.

1. Accordingly the three persons said by the applicant to have been wrongly denied a vote were not entitled to vote in the election. It follows that in my opinion the first alleged irregularity did not occur.

2. As to the second alleged irregularity, Mr. Marshall submitted that Rule 30(d)(i), read in conjunction with Rule 17(e), entitled the members of the Branch Committee voting at the meeting on 27 June, 1985 to a number of votes related to the number of financial members represented by them (referred to by the parties and in these reasons as "multiple voting"). I am unable to uphold that submission. Although the matter is not free from doubt, in my opinion Rule 30(d)(i), on its true construction, did not confer a right to "multiple voting" upon "each member of the Branch Committee present". Nor do I consider that Rule 17(e), on its true construction, applied to "a secret ballot" conducted at a meeting of the Branch Committee. Sub-rule 17(e) in my opinion was a general provision, applicable to voting at a Branch Committee meeting on "motions" as distinct from voting in a secret ballot cf the reference in the last sentence of Rule 17(e) to "the motion". As a general provision it can not prevail over the special provision in Rule 30(d)(i) dealing with a secret ballot conducted at the meeting. Accordingly, in my opinion the second alleged irregularity did not occur.

3. Mr. Marshall stated in his opening address that, if he failed to persuade the court that the second alleged irregularity (as to "multiple voting") had occurred, then, unless he succeeded as to both the first and the third alleged irregularity, he would not seek to persuade the court to make orders declaring the election void. That concession was made because of the law and the facts. As to the law, s. 165(4) of the Act provides that "the Court shall not declare an election ... to be void ... unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred ..., the result of the election may have been affected ... by irregularities".

4. As to the material facts, Mr. Marshall accepted that, in the absence of a finding that the second alleged irregularity (the refusal of "multiple voting") had occurred, he could not contend that the number of votes involved was such that "the result of the election may have been affected ... by irregularities" (i.e. unless he obtained findings that both the first and the third irregularities had occurred. As already appears, the court does not find that either the first or the second alleged irregularity occurred, and it follows that, even if the third alleged irregularity had occurred, the applicant could not obtain an order declaring the election to be void (s. 165(4)).

5. The court is, however, under a duty to "inquire into and determine the question whether any irregularity has occurred in or in connexion with the election" (s. 165(1)). However, having considered the evidentiary material and the arguments, I am not satisfied that the third alleged irregularity occurred. Ms. Geermans, the Returning Officer for the Branch, was called as a witness by the applicant. It is not easy to reconcile some parts of her evidence with some parts of the evidence of the applicant. The difficulty of reconciliation lies not so much in any direct conflict between the evidence as in the interpretation of certain passages. The evidence was the subject of detailed consideration in the respective final addresses but no criticism was made - and in my opinion none could fairly have been made - as to the credibility of either Ms. Geermans or of Mr. Watson.

6. If the question of whether the court should make an order declaring the election void depended upon the correct interpretation of the evidence as to this aspect, I would have considered re-listing the application in order to raise with the parties the possibility of recalling either or both of the witnesses in order to clarify the meaning of their evidence. Having regard to the nature of the court's duty in proceedings under Part IX of the Act, in my opinion the court should, in an appropriate case, (notwithstanding the disadvantages inherent in the recall of witnesses after the commencement of final addresses) consider the possible recall of witnesses in order to clarify the evidence already given by them, even where the parties have refrained from seeking leave to recall them. If witnesses were recalled leave would, of course, be given to the opposing party to further cross-examine the witnesses on that aspect.

7. However, for the reasons already given, no order declaring the election void will be made and in those circumstances the recall of witnesses will not be considered. The question of whether the third alleged irregularity occurred will be decided upon the evidentiary material already placed before the court by the parties and in the light of the opposing submissions as to the interpretation of that material. On that material I am not prepared to hold that the Returning Officer failed to properly call for nominations for the election of Divisional Representatives from the Textile Industry Division as part of the category "A.N.A.H.L. and Textile Industry Division". I accept Mr. Macken's submission that Gail Marion Russell was elected unopposed as that Divisional Representative and, as such, had the right to participate in the election for Branch Councillor held on 27 June 1985.

8. The applicant also relied upon the alleged admission of 28 members attached to the Textile Industry Division at Special Meeting No. 1 of the Victorian Branch Committee in May 1985. Submissions were made as to the meaning of Rule 4(b) of the Association's Rules which was in the following terms:
   
   

"A person desirous of becoming a member shall apply on an application form through a Branch Treasurer or the General Treasurer to Council. The person shall, if found eligible for membership by the Council, be enrolled as a member upon payment of the prescribed subscription."

1. No resolution as to the admission of those persons as members was carried by the Council until December, 1985. The applicant contended that the words "if found eligible for membership by the Council" in Rule 4(b) constituted a condition subsequent and that the 28 persons had validly become members of the Association in May, 1985. Mr. Macken, on the other hand, in answer to a question from the court, said that the persons in question "did not acquire any rights of membership by the fact of that purported meeting" (in May 1985). However, he conceded that "circumstances could alter the case" and that "it may well be ... hard for an organization to dispute the membership of some persons having regard to a course of conduct".

2. The applicant also submitted that if the words "if found eligible for membership by the Council", appearing in the sub-rule, were construed as a condition precedent, they would conflict with the provisions of the Act, including s. 144, and the sub-rule would be to that extent invalid. He relied upon that contention as a reason for construing the words as constituting a condition subsequent instead of being a condition precedent. It may be said immediately that, in the light of the submissions of Mr. Marshall and of Mr. Macken as to the rule relating to admission to membership, it is obviously desirable that the Association give prompt consideration to both the meaning and the validity of sub-rule 4(b). There is much force in the applicant's submissions but it is not necessary to determine those questions of law in the present proceedings. That is because the applicant, even if his submissions as to admission to membership, were correct, has failed to persuade me that, (as he contended in relation to the third alleged irregularity) the Branch Committee was required by the rules "to provide for the conduct of an election for (a) Divisional Representative" to be completed at some time between 12 June 1985 and the commencement of the meeting on 27 June 1985.
   

On this aspect the applicant's "contentions of fact

and law", as amended during the hearing, included the following:-

"9. At least by 12 June 1985 there were at least six persons employed in the Textile Industry Division of C.S.I.R.O. who were financial members of the Association.

10. In accordance with the provisions of Rule 17(a) of the rules of the Association, the members of the Association employed in the Textile Industry Division were at least as at 12 June 1985 and continuing, entitled to elect one representative to the Branch Committee, such offices having arisen by virtue of Rule 17(a)."

1. I have given careful consideration to the terms of Rule 17(a), upon which the applicant placed considerable reliance. That sub-rule included the following provisions:-
   
   

"(a) The management of the Branches shall be vested in the Branch Committees which shall consist of the Chairman, Vice-Chairman, Treasurer, Secretary and one or more Representatives. All members of the Committee shall be financial members of the Association. There shall be one Representative for each Division or Section of CSIRO located within the Branch and to which six but not more than thirty financial members of the Association are attached .... Financial members of the Branch who are appointed to a Division or Section not having a Representative on the Branch Committee, shall for the purpose of electing Representatives be attached by the Branch Committee to Divisions or Sections having such Representatives. Also if there are at least six unattached financial members, they shall be grouped together and as such group, shall have a separate Representative. In exercising the powers conferred upon it under this clause, the Branch Committee shall give due consideration to the wishes of the members involved...."

1. The applicant has failed to persuade me that the rules imposed upon the Branch Committee the duty to conduct, during the period of 15 days before the meeting on 27 June 1985, an election for such a Divisional Representative. It has not been shown that the alleged failure by the Branch Committee to conduct such an election constituted "an irregularity in or in connexion with" the election for Branch Councillor on 27 June 1985.

2. I should add that, on the question of the admission of new members, the applicant sought to rely upon "custom and practice" within the Association. However, as to that aspect I accept Mr. Macken's submission that custom and practice cannot prevail over a provision in the certified rules of a registered organization: see Demas and ors. v Pearson and ors. (1951) 73 CAR 3 at 5 per Kelly C.J., with whose reasons for judgment Foster and Wright JJ concurred.

3. For these reasons I am not satisfied that the third alleged irregularity occurred, namely, that the "Branch Committee had failed to provide for the conduct of an election for Divisional Representatives from the Textile Industry Division and the Textile Industry Division members did not have any Representative or Representatives who could participate in the said election for Branch Councillor".

4. The respondents also submitted that, if, contrary to their submissions, the court found that an irregularity had occurred and the court was of the opinion that "the result of the election may have been affected" (s. 165(4)), the Court should, in its discretion, decline to make the orders sought

5. That submission was not based - and in my opinion, for the reasons already given, could not have been based - upon any delay by the applicant in bringing or in conducting the proceedings. It was based upon the fact that the Branch Councillor elected on 27 June 1985 will only hold office until "the Annual General Meeting of the Association" (Rule 10) which will be held in July 1986 (Rule 32(a)) and upon the short period of time before the next election for the same office of Branch Councillor.

6. In this connexion, the respondents relied upon a passage from the judgment of a Full Court in Allshorn v Stapleton and Ors. (1984) 8 IR 229 at 233. The passage was from the joint judgment of Woodward and Northrop JJ, with whose reasons for judgment Smithers ACJ agreed, and was in the following terms:-
   
   

"... in any case, the Association was now well advanced towards holding the State elections in New South Wales and South Australia which were seen as necessary preliminary steps to the holding of an election for federal officers. We can detect no error in the reasoning which led his Honour to this conclusion and so, even if we had been persuaded by the appellant's arguments on the legal issues involved, we would have refused the orders sought."

1. As I have concluded that none of the three alleged irregularities occurred, it is not necessary to decide that question but, as it was canvassed at some length in the hearing,I shall express my opinion. There is considerable force in Mr. Macken's submission but I do not consider that the circumstances of this case were such as to warrant the exercise of the discretion against the applicant, had the alleged irregularities been found to have occurred.

2. For the reasons given, the court does not find that any irregularity occurred and does not make any of the orders sought in relation to the election.

3. The applicant asked that the court, if it did not find that any irregularity had occurred, should certify, under s. 168(2) of the Act, that the applicant acted reasonably in applying for the inquiry. Having regard to the evidence and arguments advanced in the course of the inquiry, in my opinion it is proper to do so and accordingly I so certify.

4. The question of whether "it is not just that" the respondents "should be required to bear ... any costs or expenses ... incurred ... in connexion with the inquiry ..." is, by s. 168(3), a matter for the Attorney-General, without the requirement for a certificate from the court which exists in the case of an applicant. In my opinion the court should not seek to influence in any way the exercise of that power by the Attorney-General. However, at the request of the respondents, I record the fact that in these proceedings there was no suggestion made that any of the respondents had failed to act bona fide in any of the matters to which the inquiry related.